President Hopes His Pen May Be Mightier Than Gridlock

A couple of minutes ago, we heard White House aide Dan Pfeiffer speak of using every ounce of creativity to advance policies that the president favors and that Congress will not approve. That is an illusion to the realm of executive orders, directives from the White House that bypass Capitol Hill. And joining us to explore that realm is Kenneth Mayer, professor of political science at the University of Wisconsin, Madison and author of "With the Stroke of a Pen: Executive Orders and Presidential Power." Welcome.

KEN MAYER: Thank you.

SIEGEL: And let's start with a set of boundaries here. What are things that a president simply cannot do without Congressional approval?

MAYER: Well, the president can't violate the constitution. The president can't change statutory language and do things like raise marginal tax rates. But within that, there are a number of things that presidents can do within their constitutional powers as chief executive and commander in chief and implementing statutes that is based primarily or solely on executive discretion.

SIEGEL: Presidents have been doing this from the beginning of the republic. Tell us about some famous executive actions that didn't involve Congress.

MAYER: Some famous ones were Thomas Jefferson negotiating the purchase of the Louisiana territory, Lincoln with the emancipation proclamation, Roosevelt creating the executive office of the president, Truman desegregating the armed forces and Kennedy and Johnson establishing the contemporary framework for affirmative action by specifying that government contractors had to have these programs in place in order to be eligible for government contracts.

SIEGEL: That's a pretty big chunk of American history you've just described.

MAYER: That's correct.

SIEGEL: Now, I gather that President Obama has been less active in this area than other recent presidents. Is he less quick to use executive orders and who were more quick to do so?

MAYER: Well, he's issued fewer executive orders as the instrument that is published in the federal register under the title, Executive Orders. He's issued about 33 per year compared to previous presidents. Bush was about 36. Clinton was about 36. Reagan was 49 per year. But he's been aggressive in other areas, doing things like continuing NSA surveillance from the Bush administration, asserting the authority to order the killing of even American citizens abroad who they suspect as being involved in terrorist groups.

One of the most important ones was Obama's mini Dream policy which he announced in the summer of 2012 after Congress refused to enact immigration reform.

SIEGEL: Yeah, the so-called Dream Act, which did not become a law would've legalized the status of people who were brought here as young children by parents who entered illegally and those grownup children then face deportation. So failing to get the law done, the president said, as a matter of policy, we just won't deport those people.

MAYER: That's correct. Using prosecutorial discretion or the president's constitutional authority to determine who is going to be prosecuted for violating federal law and the conditions under which those prosecutions will be carried out, issued a policy specifying the conditions under which they would not initiate deportation proceedings against people who are in the country illegally.

SIEGEL: Well, in what's called this mini dream policy, some people are processing applications, they're talking to applicants who want to be covered by this policy. The federal government is working. Don't you need somebody in Congress, somewhere, approving their pay for doing that?

MAYER: Not really. The difference is that these are tasks and duties that these executive branch officials and employees would be carrying out in any case in the normal course of their duties. So it doesn't require a change to the law. It takes the form of an administrative directive in terms of how they will do their law, how they will carry out their duties which are otherwise authorized and funded by statutes.

SIEGEL: Kenneth Mayer, thanks for talking with us today.

MAYER: It's my pleasure.

SIEGEL: That's Professor Kenneth Mayer, political scientist at the University of Wisconsin, Madison.